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Rahimi v. Lansing

United States District Court, District of Columbia

September 21, 2017

MAHMONIR RAHIMI, Plaintiff,
v.
KENNETH WEINSTEIN,[1] Chairman, Broadcasting Board of Governors, Defendant.

          MEMORANDUM OPINION

          REGGIE B. WALTON, UNITED STATES DISTRICT JUDGE.

         Mahmonir Rahimi, the plaintiff in this civil case, filed a complaint against the defendant, Kenneth Weinstein, in his official capacity as the Acting Chairman of the Broadcasting Board of Governors (“the agency”), alleging that the agency retaliated against her in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e to 2000e-17 (2012) (“Title VII”). See generally Plaintiff's First Amended Complaint (“Am. Compl.”). Currently before the Court is the Defendant's Partial Motion to Dismiss the First Amended Complaint or, Alternatively, for Partial Summary Judgment (“Def.'s Mot.”). Upon careful consideration of the parties' submissions, [2] the Court concludes that it must grant in part and deny in part the agency's motion.

         I. BACKGROUND

         The plaintiff worked for the Persian News Network, also known as VOA Persian, the Persian language service of the Broadcasting Board of Governors, from March 2008 until May 26, 2015. Am. Compl. ¶¶ 1-2. She “was continuously employed under a series of purchase order contracts, ” id. ¶ 9, which “designated her as a Purchase Order Vendor, ” id. ¶ 12. The plaintiff served as a TV show host, “interviewer, writer and translator” from 2008 until 2010. Id. ¶ 15.

         “In 2010, [the p]laintiff was asked to serve as a witness in an [Equal Opportunity Employment (“EEO”)] proceeding against another VOA Persian colleague, Mr. Mehdi Falahati.” Id. ¶ 26. According to the plaintiff, “[s]oon [there]after, [she] started facing retaliation because of her participation in the EEO proceeding.” Id. ¶ 28. In 2010, the plaintiff's supervisor allegedly told her “that she could not work for both TV and Radio programs of VOA Persian, ” id. ¶ 29, which caused the plaintiff to “los[e] roughly one-third [ ] of her income, ” id. ¶ 30. The plaintiff's supervisor also purportedly told her “that she could no longer work the same shift as Mr. Falahati . . . because Mr. Falahati had told the VOA Persian management that he was not comfortable working the same shift as [the p]laintiff.” Id. ¶ 31. “Based upon this order, [the p]laintiff could no longer work during the morning shift and was only permitted to work during the night shift.” Id. The plaintiff was therefore reassigned to a TV show produced during the evenings, id. ¶ 33, but “[s]hortly after [she] joined [that TV show], the show was suspended, ” id. ¶ 34, and “the only night programing left was for VOA Persian's radio show, ” id. ¶ 37.

         According to the plaintiff, “[f]rom 2010 until 2015, [she] was twice denied TV hosting positions due to her EEO activity.” Id. ¶ 43; see also id. ¶ 44 (“[The p]laintiff was told that she could not be the host because she was not allowed to work during the same shift as Mr. Falahati[, and b]oth [TV shows] were recorded in the mornings.”). The plaintiff was also allegedly prohibited from attending work meetings that occurred during the morning shift, even though those meetings were mandatory. See id. ¶¶ 48-49.

         “Despite the retaliation that [the p]laintiff faced, she repeatedly applied for federal employee positions [with VOA Persian] so that she could rectify the financial and professional harm that she was suffering.” Id. ¶ 51; see also id. (listing six specific federal positions for which the plaintiff applied between 2010 and 2015). However, according to the plaintiff, she was not selected for any of these positions because they all required the person selected to work during the morning shift. See id. ¶ 52.

         During this same time, the plaintiff contends that she “attempted to negotiate the limitations on her work schedule with her supervisors . . . . However, these efforts were futile, and none of her supervisors took any actions to remedy or to stop the retaliation.” Id. ¶ 45. “[The p]laintiff also spoke to Ms. Tisha Elliot, a Labor Specialist of the Labor and Employee Relations Division . . . [about] the retaliation that she was facing . . . [, but] Ms. Elliot told her that she did not have any recourse because she was an independent contractor, and the EEO process was only available to federal employees.” Id. ¶ 46. “This idea was further reinforced for the [p]laintiff when a member of the federal employees' labor union, Ms. Parichehr Farzam, informed the [p]laintiff that she could not participate in the EEO complaint process.” Pl.'s Opp'n at 5. In 2014, the plaintiff, “through counsel, ” contacted the Staff Director at VOA Persian regarding the alleged retaliation, but was told that “there is nothing to resolve right now because she has not been harmed.” Am. Compl. ¶ 47. “As a result, [the p]laintiff did not file any EEO complaints until the time of her termination.” Id. ¶ 46.

         “In May 2015, [the p]laintiff was notified that the nightly Radio program was being terminated, and due to budgetary restrictions, her contract was being cut short.” Id. ¶ 53. In the department-wide e-mail sent by the Director of VOA Persian announcing the plaintiff's departure, the Director stated that the plaintiff's separation “had nothing to do with her work product, ” and that the plaintiff had “served VOA Persian with distinction.” Id. ¶ 54. “[The p]laintiff's last day of work was on May 26, 2015.” Id. ¶ 56. According to the plaintiff, when a VOA Persian show is suspended, the “general practice” is that the show's staff “are reassigned to other programs and divisions. However, given the retaliatory prohibition against [the p]laintiff working during the morning shift[, ] she was not reassigned to any existing openings or programs.” Id. ¶ 57.

         Following her termination, the plaintiff applied for an additional federal employee position and three contractor positions with VOA Persian, see id. ¶ 58, but she “was not selected for any of these position[s], ” id. ¶ 59. Mohammad Manzarpour, the Executive Editor of VOA Persian, id. ¶ 55, stated in an affidavit “that he seriously considered [the p]laintiff for one of the open contract positions, but did not select her because of the limitation on her work hours, ” id. ¶ 60, and “the fact that [the p]laintiff could not work the same shift as Mr. Falahati was one [of] the factors that ‘made it impossible to retain her or place her in another position, '” id. ¶ 61.

         On July 9, 2015, the plaintiff filed an informal complaint with the agency's Office of Civil Rights. Id. ¶ 64. After an EEO counselor was unable to informally resolve the matter, the plaintiff filed a formal discrimination complaint with the agency on September 25, 2015. Id.¶¶ 65-66. After the agency failed to issue a Final Agency Decision within 180 days, the plaintiff requested and was issued a Right to Sue Letter on March 23, 2015. See id. ¶¶ 67-69.

         The plaintiff filed suit in this Court on June 17, 2016, see Complaint at 1, and amended her complaint on November 2, 2016, see Am. Compl. at 1. In her Amended Complaint, the plaintiff asserts eleven counts of retaliation in violation of Title VII, see id. at 11-16, and one count of misclassification “as a non-personal service provider, ” id. ¶ 72. The agency filed its partial motion to dismiss, or alternatively for partial summary judgment, on November 10, 2016, see Def.'s Mot. at 1, and attached five exhibits that are not incorporated in the plaintiff's Amended Complaint, see id., Exhibit (“Ex.”) A (Declaration of Milsa Anglin (“Anglin Decl.”)); id., Ex. B (Affidavit of Mahmonir Rahimi (“Rahimi Aff.”)); id., Ex. C (Solicitation Number: BBG39-Q-15-PERSIAN-039 (posted Apr. 24, 2015) (“Position No. 039”)); id., Ex. D (Solicitation Number: BBG39-Q-15-PERSIAN-040 (posted Apr. 24, 2015) (“Position No. 040”)); id., Ex. E (Solicitation Number: BBG39-Q-15-PERSIAN-041 (posted May 7, 2015) (“Position No. 041”)). If “matters outside the pleadings are presented to and not excluded by the court, [a] motion [to dismiss under Rule 12(b)(6)] must be treated as one for summary judgment under Rule 56.” Fed.R.Civ.P. 12(d). As both parties rely on or otherwise refer to these exhibits in their briefing, see Def.'s Mem. at 5-6, 9-10; Pl.'s Opp'n at 5, 10; Def.'s Reply at 9, 10, the Court must treat the agency's motion as one for partial summary judgment, see Fed.R.Civ.P. 12(d).

         II. STANDARD OF REVIEW

         If a district court considers a matter which requires that a Rule 12(b)(6) motion be converted to one for summary judgment pursuant to Rule 56, the motion can be granted only “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). When ruling on a Rule 56 motion, the Court must view the evidence in the light most favorable to the non-moving party. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006) (citing Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 150 (2000)). The Court must therefore draw “all justifiable inferences” in the non-moving party's favor and accept the non-moving party's evidence as true. Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986).

         In responding to a motion for summary judgment, the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Accordingly, the non-moving party must not rely on “mere allegations or denials . . . but . . . must set forth specific facts showing that there [are] genuine issue[s] for trial.” Anderson, 477 U.S. at 248 (second omission in original) (internal quotation marks omitted). “The mere existence of a scintilla of evidence in support of the [non-moving party's] position [is] ...


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